Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND09-00378

ex-AZAA, USN

Current Discharge and Applicant’s Request

Application Received:  20081203
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT DRUG ABUSE
Authority for Discharge:  MILPERSMAN 1910-146 (DRUG ABUSE)

Applicant’s Request:  Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20060524 - 20060730  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20060731	Age at Enlistment:  23
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20080605	Highest Rank/Rate:  AZAN
Length of Service:  01 Year(s)   10  Month(s)   05 Day(s)
Education Level:  12	AFQT:  68
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  3.0 (1)	OTA:  3.50

Awards and Decorations (per DD 214):	NDSM GWOTSM

Periods of UA/CONF:  NONE

NJP:  1
- 20080117:	Article 92 (Failure to obey a lawful written general regulation), 3 specifications
	Article 112a (Drug use, wrongful use of a controlled substance, cocaine and prescription medication not prescribed to him)
	Awarded: RESTR EPD FOP RIR  Suspended:  NONE

SCM:  NONE   SPCM:  NONE   CC:  NONE   Retention Warning Counseling:  NONE

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  ☒	 Service/Medical Record:  ☒		  Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
              Additional Statements:
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐

                    Other Documentation:  ☐

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Seeking an upgrade in order to obtain VA benefits.
2.  Was honest with the Navy about his addiction which was worsened by narcotics prescribed for back pain.
3.  Post service conduct.

Decision

Date:  20090320	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (DRUG ABUSE).

Discussion

Issue 1:  The Applicant is seeking an upgrade in order to obtain VA benefits needed to treat his medical problems. This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Service Benefits, for additional information regarding this Issue.

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge should be upgraded since he admitted to and sought help for a drug addiction that was made worse after he was prescribed narcotics for back pain.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  

The Applicant’s service was marred by one NJP proceeding on 17 January 2008 for violations of the Uniform Code of Military Justice (UCMJ):  Articles 92 (Failure to obey a lawful regulation), 3 specifications and Article 112a (Drug use, wrongful use of a controlled substance, cocaine and taking prescription medication not prescribed to him).  The  Applicant’s medical record of 6 June 2007 reflect the Applicant was involved in a bus accident resulting in back pain for which he was prescribed Percocet (a controlled substance) and Flexeril, as well as other medications.  The Substance Abuse Rehabilitation Program Discharge Summary of 15 February 2008, indicates the Applicant was given the diagnoses of alcohol abuse, polysubstance abuse and Percocet dependence and successfully completed treatment.  

The Board applauds the Applicant’s efforts in seeking treatment to overcome his addictions.  However, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Based on a review of the record, evidence submitted by the Applicant and taking into consideration the seriousness of the offenses committed, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.   

Issue 3:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends since being discharged he has obtained a great support system, has not used narcotics or any illegal substance to relieve his back pain, attends narcotics anonymous meetings, and has been employed with Ruby Tuesday for 5.5 months.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good 

standing from banks, credit card companies, or other financial institutions; and documentation of a drug free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

While the Board applauds the Applicant’s post service efforts, the Board determined the statement of post-service conduct did not support an upgrade.  To warrant an upgrade the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service, UCMJ violations involved, and the lack of post service documentation.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service  Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.  

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until Present, Article 1910-146, Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable Discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water